¶1NOTICE: This opinion is subject to modification resulting from motions for reconsideration under Supreme Court Rule 27, the Court’s reconsideration, and editorial revisions by the Reporter of Decisions. The version of the opinion published in the Advance Sheets for the Georgia Reports, designated as the “Final Copy,” will replace any prior version on the Court’s website and docket. A bound volume of the Georgia Reports will contain the final and official text of the opinion.
¶2In the Supreme Court of Georgia
¶3 Decided: November 29, 2022
¶4 S22A0969. YOUNG v. THE STATE.
¶5 MCMILLIAN, Justice.
¶6 After a jury trial in 2019, Tia Young was convicted of felony
¶7murder and other crimes in connection with the shooting death of
¶8her husband, George Young. 1 On appeal, Tia claims that the
¶9 George Young was killed on November 16, 2017, and on June 27, 2018, 1
¶10a Gwinnett County grand jury indicted Tia Young and Harvey Lee for malice murder (Count 1), felony murder (Count 2), and aggravated assault (Count 3) in connection with George’s shooting. Tia was also indicted separately for criminal attempt to commit a felony based on tampering with evidence to prevent Lee’s apprehension (Count 4) and criminal attempt to commit a misdemeanor based on tampering with evidence to prevent her own apprehension (Count 5). Tia moved to sever the trial, which the trial court denied after a hearing. At a trial conducted from March 25 through April 5, 2019, a jury found Tia guilty of Counts 2, 3, 4, and 5, and Lee guilty of Counts 1 through 3. On April 15, 2019, Tia was sentenced to serve life in prison with the possibility of parole for Count 2, two years and six months for Count 4, and six months for Count 5, to be served consecutively. Count 3 was merged into Count 2 for sentencing purposes. Lee was sentenced to serve life in prison without the possibility of parole, and, upon appeal to this Court, we affirmed his convictions. See Lee v. State, __ Ga. __, 2022 Ga. LEXIS 265 (Case No. S22A0720, decided Oct. 4, 2022). evidence was insufficient to sustain her convictions as a matter of
¶11constitutional due process; that the trial court abused its discretion
¶12by denying her pretrial motion to sever her trial from the trial of her
¶13co-defendant, Harvey Lee; and that the trial court erred by
¶14improperly charging the jury on the counts for criminal attempt to
¶15tamper with evidence. 2 We affirm Tia’s convictions because the
¶16evidence was sufficient to sustain her convictions, the trial court did
¶17not abuse its discretion in denying Tia’s motion to sever, and any
¶18error in the jury charge on tampering with evidence was harmless.
¶19 On April 19, 2019, Tia timely filed a motion for new trial, which was amended on March 31, 2020, and on February 10, 2022. Following a hearing on February 14, 2022, the trial court entered an order denying the motion for new trial on March 25, 2022. Tia filed a timely notice of appeal on April 4, 2022. Tia’s case was docketed to the August 2022 term of this Court and submitted for a decision on the briefs. 2 Tia was convicted and sentenced for both misdemeanor and felony
¶20attempted tampering with evidence based on the same conduct, but she has not raised any merger claim on appeal. We decline to sua sponte address whether one may be convicted and sentenced for both felony and misdemeanor attempted tampering with evidence where the counts are based on the same conduct but directed at preventing the apprehension of two different criminal actors, which appears to be an issue of first impression. But we note that a valid claim that a conviction merges with another conviction renders any resulting sentence on the merged conviction void. See Nazario v. State, 293 Ga. 480, 480 (746 SE2d 109) (2013) (“A conviction that merges with another conviction is void – a nullity – and a sentence imposed on such a void conviction is illegal . . . .”). 2 The evidence presented at trial showed that George and Tia
¶21Young were married and lived in Gwinnett County with their three
¶22children. George worked in security and hired Harvey Lee, a family
¶23friend, as a subcontractor and allowed Lee to live in the family’s
¶24home.
¶25 Late on the night of November 16, 2017, George arrived home
¶26from working a security event and was shot twice on his front porch.
¶27Phone records from the night of the shooting show that George was
¶28on the phone with his co-worker, Latanya Knowles, while in the car
¶29on his way home. Knowles testified at trial that she and George were
¶30on the phone until George said he arrived home. The phone records
¶31show that the call ended at 11:23 p.m. Knowles testified at trial that
¶32George did not mention anything out of the ordinary during this call.
¶33 At 11:31 p.m., Tia called 911, and at 11:40 p.m., officers arrived
¶34to find George deceased, lying on his back on the front porch with
¶35his feet facing the door. The autopsy showed that two gunshots had
¶36entered the front of George’s body, and the medical examiner
¶37testified that these wounds were the cause of George’s death.
¶38 3 George’s keys were still in the door, and a shell casing was on the
¶39porch. The home had a security system with a camera facing the
¶40front door, but the device was not working at the time of the
¶41shooting. George’s eldest son testified that the camera had been
¶42broken for many months.
¶43 When interviewed by police at the scene, Lee said that he was
¶44at the kitchen table on his computer when he heard gunshots. He
¶45then ran upstairs to get his pistol, came downstairs, and saw George
¶46on the ground. Lee ran back upstairs, put the gun away, and told
¶47Tia to call 911. Lee told police that he returned to George and
¶48performed CPR until a neighbor arrived and took over for him.
¶49 Tia told officers at the scene that she woke up to the sound of
¶50two gunshots. She said that Lee went to grab his gun and told her
¶51to call 911. When asked about problems in the home, Tia told officers
¶52that they “stay broke.” She said she had recently lost her job and
¶53that George had recently borrowed money from different people. She
¶54also told officers that George had previously mentioned that a white
¶55SUV followed him on two occasions, and that, on one of these
¶56 4 occasions, the SUV tried to run George off the road.
¶57 One neighbor testified that he heard gunshots and, after
¶58consulting with his family about the noise, looked out of his window
¶59where he could see the front of the Young house. Less than ten
¶60minutes after hearing the gunshots, the neighbor noticed a person
¶61moving from the direction of the Young house to a vehicle in the
¶62driveway and testified that the person was “hunched over or . . . did
¶63something to the vehicle” before running back toward the house. The
¶64neighbor continued watching and saw the person do the “exact same
¶65thing again” a minute or two later.
¶66 George and Tia’s three children slept through the shooting and
¶67neither heard nor saw anything. The eldest child testified that he
¶68was a heavy sleeper. Another of the children was prescribed sleeping
¶69medication, and although he did not take it regularly, Tia had given
¶70him a sleeping pill that night. Tia’s mother, who also lived in the
¶71home, explained that she did not hear anything because her
¶72television’s volume was high. Seven neighbors testified at the trial
¶73about hearing the gunshots, but only one testified about hearing a
¶74 5 car leave the scene after the gunshots.
¶75 Officers searched the home and found two handgun holsters
¶76and one handgun in Lee’s room, as well as a rifle in Lee’s truck. A
¶77firearm examiner determined that the shooter used a .40-caliber
¶78M&P Smith and Wesson handgun. This weapon was never located,
¶79and there was no evidence that either Tia or Lee had ever possessed
¶80or purchased a .40-caliber Smith and Wesson handgun. Crime scene
¶81technicians performed gunshot residue tests on Lee’s hands, but not
¶82Tia’s, and found no residue on Lee’s hands. No fingerprints were
¶83found on the bullets.
¶84 On November 17, the morning after the shooting, George’s
¶85employer went to the Young home, and Tia asked him to help her
¶86find George’s one-million-dollar life insurance policy, of which she
¶87was the primary beneficiary. Tia located the policy and notified the
¶88insurance company of George’s death later that day.
¶89 That same day, Lee went to George’s office building. He told a
¶90co-worker that George had been shot and killed. The co-worker
¶91asked about the home’s surveillance camera, and Lee replied that
¶92 6 the camera was not working. Lee then asked the co-worker if he
¶93could continue to work for the security company as a subcontractor.
¶94 Later that same day, police officers asked Lee and Tia to go to
¶95the police station to speak with a detective, and they agreed. During
¶96Lee’s interview, investigators questioned Lee about a person going
¶97to the victim’s vehicle after George was shot. Lee told officers that
¶98he was removing a tracking device that he had placed under
¶99George’s car. Lee also said that George had asked Lee to buy the
¶100tracking device, and if anything happened to George, George wanted
¶101Lee to know where George’s car was and to take the tracking device
¶102off. Lee did not provide evidence of this agreement with George, and
¶103text messages between George and Lee introduced at trial
¶104contradicted the idea that George was aware of or consented to the
¶105tracking device that had been placed on his car. Lee told the
¶106investigators that the tracking device was in his bedroom.
¶107 The evidence introduced at trial also showed that, while away
¶108from home on November 17, Tia called a friend who had come to the
¶109Young home after hearing of George’s death. Tia asked the friend to
¶110 7 find and “get” the cell phones belonging to both Tia and Lee, which
¶111were in their respective bedrooms. The friend did not comply with
¶112this request. At trial, the friend testified that Tia apologized and
¶113explained that she made the request because one of Lee’s texts
¶114would have made him seem violent. The friend testified that Tia did
¶115not give an explanation for why she asked the friend to move her
¶116phone as well.
¶117 After the interviews, officers went to the Young home with a
¶118search warrant, seized the tracking device from Lee’s bedroom, and
¶119subpoenaed records from the device. Officers also recovered cell
¶120phones from the home. Lee’s phone revealed internet searches on
¶121October 28, 2017, about poisonous snake or spider venom for sale.
¶122Lee’s phone history also showed that on the night of the shooting,
¶123while officers were still on the scene, Lee looked up a different
¶124murder case and an article about the defendant in that case pleading
¶125guilty. Tia’s phone revealed a meme saved to her phone that said:
¶126“The fortuneteller says your husband will meet a violent end. The
¶127lady responds, will I be convicted?” The cell phone also contained e-
¶128 8 mails that revealed a romantic affair between Lee and Tia, which
¶129the two initially denied but eventually admitted when confronted
¶130with the e-mails. Both Lee and Tia were eventually arrested for
¶131George’s murder and were tried together. Neither testified.
¶132 1. Tia asserts that the evidence was insufficient to sustain her
¶133convictions as a matter of constitutional due process. In reviewing
¶134sufficiency, this Court evaluates whether a rational trier of fact
¶135could have found all of the elements of the crime beyond a
¶136reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 319 (III)
¶137(B) (99 SCt 2781, 61 LE2d 560) (1979). “[W]e construe the evidence
¶138presented in the light most favorable to the verdict, and neither
¶139reweigh it nor determine witness credibility.” Terrell v. State, 300
¶140Ga. 81, 84 (1) (793 SE2d 411) (2016).
¶141 Here, the jury was presented with sufficient circumstantial
¶142evidence against Tia, which included the following. Tia was home at
¶143the time of the shooting, which happened as George was opening the
¶144front door, and the position of his body after the shooting indicated
¶145that he was shot from within the house. Tia and Lee were having an
¶146 9 affair and lied about it to police officers until confronted with e-mail
¶147evidence. Tia saved a meme on her phone of a woman asking if she
¶148would be convicted of her husband’s death. Tia was also the
¶149beneficiary on George’s million-dollar life insurance policy, which
¶150she called to inquire about the day after the shooting. Further, while
¶151on the way back from the police station the day after the shooting,
¶152Tia asked a friend to find and “get” her and Lee’s cell phones, later
¶153telling the friend that she was worried the phone’s contents would
¶154make Lee seem violent. Law enforcement determined that the cell
¶155phones contained incriminating evidence against both of them. This
¶156evidence was sufficient for a rational jury to find Tia guilty beyond
¶157a reasonable doubt for the crimes of which she was convicted as
¶158either a direct participant or as a party to the crimes. See OCGA §
¶15916-2-20 (a) (“Every person concerned in the commission of a crime is
¶160a party thereto and may be charged with and convicted of
¶161commission of the crime.”); OCGA § 16-5-1 (c) (felony murder);
¶162OCGA § 16-5-21 (aggravated assault); OCGA § 16-4-1 (criminal
¶163attempt); OCGA § 16-10-94 (tampering with evidence).
¶164 10 2. Tia next asserts that the trial court abused its discretion by
¶165denying Tia’s pretrial motion to sever her trial from the trial of her
¶166co-defendant, Lee, because the evidence against Lee was strong and
¶167was unfairly counted against her. We disagree.
¶168 A trial court has the discretion to try jointly or separately
¶169defendants that have been jointly indicted for a felony where the
¶170death penalty is not sought. See OCGA § 17-8-4 (a). “The relevant
¶171factors in ruling on a motion to sever are: (1) the likelihood of
¶172confusion of the evidence and law; (2) the possibility that evidence
¶173against one defendant may be considered against the other
¶174defendant; and (3) the presence or absence of antagonistic defenses.”
¶175Terrell v. State, 313 Ga. 120, 129 (4) (868 SE2d 764) (2022) (citation
¶176and punctuation omitted). On appeal, to show error in the denial of
¶177the motion to sever, Tia bears the burden of “establishing that a joint
¶178trial was so prejudicial as to amount to a denial of [her] right to due
¶179process.” Id. (citation and punctuation omitted).
¶180 Tia and Lee were charged with the same offenses arising from
¶181the same incident, except for Tia’s additional attempt to tamper with
¶182 11 evidence charges, and the State alleged that the two conspired to kill
¶183George. As such, much of the evidence introduced at the joint trial
¶184was applicable to and admissible against both Tia and Lee, and
¶185there was not a high likelihood of confusion of the evidence and law.
¶186See Krause v. State, 286 Ga. 745, 750 (5) (691 SE2d 211) (2010) (no
¶187significant likelihood of confusion of evidence and law or significant
¶188possibility that evidence used against one defendant would
¶189improperly be used against the other, where only two defendants
¶190were involved in the same incident giving rise to the same charges
¶191and were alleged to have acted together).
¶192 Further, Tia and Lee did not raise antagonistic defenses, such
¶193as each one saying the other shot George, nor has Tia shown that
¶194the existence of a potentially antagonistic defense prejudiced her
¶195trial. See Krause, 286 Ga. at 750 (5) (“[U]nless there is a showing of
¶196resulting prejudice, antagonistic defenses do not automatically
¶197require a severance.” (citation and punctuation omitted)). Tia has
¶198not shown that the outcome of her trial would have been different
¶199had she been tried separately from Lee nor that she was prejudiced
¶200 12 by the joint trial. See Pike v. State, 302 Ga. 795, 799 (2) (809 SE2d
¶201756) (2018). Accordingly, Tia has failed to show that the trial court
¶202abused its discretion in denying her motion to sever. See id.
¶203 3. Tia also asserts that the trial court erred by improperly
¶204charging the jury on her felony and misdemeanor attempted
¶205tampering with evidence charges (Counts 4 and 5), depriving her of
¶206due process. Tia objected to the jury charge at the charge conference
¶207and renewed the objection after the charge was given at trial,
¶208“preserving the issue for ordinary review on appeal.” Wynn v. State,
¶209313 Ga. 827, 839 (5) (874 SE2d 42) (2022). Upon review, this Court
¶210considers jury charges “as a whole.” Grimes v. State, 296 Ga. 337,
¶211343 (1) (b) (766 SE2d 72) (2014).
¶212 The indictment alleged that Tia took steps to conceal evidence
¶213“with the intent to prevent the apprehension” of Lee and herself, but
¶214the trial court also charged the jury using language from OCGA §
¶21516-10-94 that tampering with evidence may be found if the intent
¶216was also to “cause the wrongful apprehension of any person or to
¶217obstruct the prosecution of any person[.]” However, the trial court
¶218 13 read Tia’s full indictment to the jury at the beginning of the trial
¶219and instructed the jury during the jury charge to carefully read and
¶220examine the indictment, which was sent back with the jury for
¶221deliberations. The trial court also charged the jury that each
¶222element of each crime must be proven beyond a reasonable doubt.
¶223As such, any error in the jury charge’s deviation from the indictment
¶224language was harmless because there is no reasonable probability
¶225that the jury could have convicted Tia based on the deviation from
¶226the indictment. See Miller v. State, 289 Ga. 854, 861 (8) (717 SE2d
¶227179) (2011) (“[A] deviation from the indictment to the jury charge is
¶228not error where the trial court read the indictment in full to the jury
¶229and charged the jury that the State must prove each element of the
¶230crime as charged beyond a reasonable doubt.”); Reed v. State, 285
¶231Ga. 64, 65 (4) (673 SE2d 246) (2009) (When trial court read the
¶232aggravated assault count as it appeared in the indictment and
¶233instructed the jury on reasonable doubt, “[t]here is no reasonable
¶234probability that the jury could have convicted [the defendant] based
¶235on the trial court’s instructional deviation from the language of the
¶236 14 indictment.”).
¶237 Judgment affirmed. All the Justices concur.
¶238 15